Holt v. Chi., M. & St. P. Ry. Co.

• Decision Date: 15 December 1896
• Citation: 69 N.W. 352,94 Wis. 596
• Court: Wisconsin Supreme Court
• Parties: HOLT v. CHICAGO, M. & ST. P. RY. CO.

94 Wis. 596

69 N.W. 352

HOLT

v.CHICAGO, M. & ST. P. RY. CO.

Supreme Court of Wisconsin.

Dec. 15, 1896.

Appeal from superior court, Milwaukee county; J. C. Ludwig, Judge.

Action by William Holt against the Chicago, Milwaukee & St. Paul Railway Company. There was a judgment of nonsuit, and plaintiff appeals. Affirmed.

Action for a personal injury to the plaintiff which was caused by the use of a defective tool, which he found in the building where his work was and used without inspection. The plaintiff was a machinist of 20 years' experience. He was employed as a machinist in the defendant's shops and its adjacent roundhouse at night work. On the night of the accident he was required to repair a locomotive in the roundhouse. Finding it necessary to move the locomotive a short distance, he looked for and found a pinch bar, with which he attempted to remove it. He applied the bar to the wheel of the locomotive, and put his whole weight upon the lever, raising his feet from the floor for that purpose. While he was in that position the bar slipped upon the rail and fell to the floor. The plaintiff fell upon the bar in such a manner as to partially dislocate both knees. A pinch bar is a tool which is simple in its mechanical contrivance. It is a bent lever, with a long and a short arm. The short arm is about 3 to 3 1/2 inches in length. The long arm is about 6 feet long, and tapers to small size towards the end. The bar is made of iron or steel, and weighs 30 to 40 pounds. That part of the bar which is the short arm is shaped somewhat like the letter “V.” The point of the V-shaped part, when the bar is used, is applied to the weight to be moved. The end of the lower arm of the V shape is the fulcrum. This part of the bar is made of steel, and, when new, the points are sharp. Like other tools, it becomes dulled and blunted by using. When used to move a locomotive, the point of the bar is placed between the wheel and the rail. The locomotive is the weight, and the rail the fulcrum. When the points become dulled by use, the bar will sometimes slip upon the rail. The plaintiff had used pinch bars, and knew their construction. He had moved locomotives with them before. Immediately after the accident, he felt the bar “to find out what condition it was in and how it felt,” and found that it was dull. It does not appear but that there were other and safe pinch bars in the roundhouse. The plaintiff had the right to call men to move the locomotive. Two men came and moved it for him after the accident. There was judgment of nonsuit, from which the plaintiff appeals.

George E. Sutherland, for appellant.

C. H. Van Alstine, for respondent.

NEWMAN, J. (after stating the facts).

The negligence claimed by the plaintiff is the failure of the defendant to furnish him with a safe tool for doing the work which it set him to do, yet it does not appear that it had not furnished, nor that there were not at the time perfect pinch bars in their proper places in the roundhouse ready for his selection and use. If they had been provided and were at hand, subject to his selection, it would seem to be in some sense his own fault, and at his own risk, if he selected a defective one; for he was an experienced machinist, and had worked with pinch bars, and knew of their construction and use. It is the duty of the master to the servant, and the implied contract between them, that the master will furnish proper, perfect, and adequate machinery or tools and appliances for the proposed work. It is supposed that the master has a better and more comprehensive knowledge of the machinery and materials to be used than the servant. So the servant has a claim upon the master for protection against the use of defective or improper machinery or appliances while he is engaged in the performance of the service required of him. But the rule has no application where the servant has knowledge, equal with the master, of the machinery or appliances employed in the...